@JUDGMENTTAG-ORDER
B. Manohar, J.@mdashThe petitioners are defendants 1, 2 and 6 in O.S. No. 8617/2013 on the file of the 12th Additional City Civil and Sessions Judge, Bangalore. Being aggrieved by the order dated 29-11-2014 passed by the Trial Court reissuing Commissioner Warrant to file his further report, the petitioners have filed this writ petition.
2. The first respondent herein filed a suit seeking for declaration, declaring that the plaintiff is the owner of ''A'' and ''B'' schedule properties and directing the defendants to deliver possession of ''A'' and ''B'' schedule properties after demolishing the illegal construction put up by the defendants thereon or permit the plaintiff to demolish the illegal construction put up by the defendants and for other reliefs.
3. In the plaint, it was contended that the land bearing Sy. No. 6 of Tavarekere village, in all measures 11 acre 02 guntas. The Manjunatha House Building Co-operative Society formed a layout in 8 acres 02 guntas of land leaving 3 acres of land belonged to Sri. Beemanna and Munichinnappa. Out of the sites formed, site No. 18 was allotted to one Sri. B.N. Narasimhamurthy. The sale deed was executed in favour of B.N. Narasimhamurthy on 8-5-1981 and he was put in possession. The said B.N. Narasimhamurthy, executed a General Power of Attorney on 11-2-1997 in favour of P.C. Shivarama Reddy authorizing him to execute the sale deed and to convey the said site in favour of anybody. The said Power of Attorney sold the property in favour of the plaintiff. On the basis of the said sale deed, the plaintiff applied to the Corporation of City of Bangalore to change katha in his name in respect of the suit schedule property and accordingly, katha has been changed in his name. However, the defendants illegally encroached upon the ''A'' and ''B'' schedule properties making false claim for katha in respect of ''A'' and ''B'' schedule properties. In view of that, the plaintiff filed a suit.
4. Smt. Jayamma who is the mother of the petitioners 1 to 3 and respondents 3 and 4 entered appearance and filed written statement and denied the entire averments made in the plaint and also contended that she is the absolute owner in possession of site No. 11 formed in Sy. No. 6 of Tavarekere village. The same was purchased from one Chotu Sab under a registered sale deed dated 23-12-1993, the said Chotu Sab purchased the said property from Muniraju son of Bheemanna. Subsequent to the death of Jayamma, the 5th plaintiff filed additional written statement. On the basis of the pleadings of the parties, the Trial Court framed necessary issues. The parties went for trial. The evidence of the plaintiff and defendants has been concluded and the case was posted for arguments. The parties had addressed their arguments at length. Thereafter, the case was posted for judgment on 28-08-2013. When the matter stood thus, the Trial Court by its order dated 22-10-2013 appointed an advocate as a Court Commissioner to make local inspection and to report about the topographical situation with complete description of the suit schedule properties with the assistance of jurisdictional Assistant Executive Engineer, BBMP reserving liberty to both the parties to submit their memo of instructions. Accordingly, the Commissioner Warrant was issued on 5-11-2013. On 8-12-2013, the Court Commissioner visited the spot and drew up a mahazar and submitted the report on 16-1-2014. In the said report, the Court Commissioner has stated that "The property in question was inspected. The said property exists in between 9th and 10th Cross and northern side of 9th Cross, there exists some portion of the property belonging to the Society as per the document. He further submit that there are three shops on the eastern side of the said property in front of 16th Main Road and in front portion of one shop No. 11 flax board has been put up. The concluding paragraph reads as under:
"I submit that as per the schedule mentioned in Exp. P1 and Exp. P5 with regard to site No. 18 and Exp. P6 with regard to site No. 19 produced by plaintiff and the schedule mentioned in Exps. 23 and 24 with regard to site No. 11 are different and also A.E.E., BBMP has given a report as stated above and for the said reason that there is very difficulty to identify the schedule property without assistance of the revenue department, BBMP and also all the relevant records in the custody of the revenue department."
5. The contesting defendants 1, 2 and 6 filed objections to the said Commissioner Report. The Trial Court on 14-3-2014 reissued the Commissioner Warrant to the same Court Commissioner to file further report after inspecting the property in dispute with the assistance of ADLR of BBMP (Revenue Department). Being aggrieved by the re-issuance of Commissioner Warrant, the petitioners herein along with respondents 3 and 4 filed W.P. No. 18950/2014 challenging the order dated 14-3-2014. This Court, by its order dated 2-9-2014 disposed of the said writ petition directing the Trial Court to take note of the report to be filed on 8-9-2014 and to proceed further in the matter by providing opportunities to the parties to file objections, if any, to the Commissioner Report and on considering such objections, the matter shall be concluded. Pursuant to the order passed by the Trial Court, the Commissioner visited the spot on 7-9-2014, drawn a mahazar and filed a memo along with the mahazar to the Trial Court on 8-9-2014 stating that Assistant Revenue Inspector has stated that the office of ADLR of BBMP is not existing and they have no jurisdiction to assist the said Court Commissioner, as such Court Commissioner could not execute the said Commissioner Warrant as directed by the Trial Court. The Trial Court once again issued Commissioner Warrant directing the Court Commissioner to file the report after inspecting the property with the assistance of Surveyor of BTM Layout, BBMP. In pursuance of the said order, the Commissioner once again visited the spot on 19-10-2014 and drew up a mahazar and filed his report on 30-10-2014 to the Trial Court. In the said report, the Commissioner has stated that there are no other revenue records with the BBMP to identify the suit schedule property. Hence, the warrant scheduled property could not be identified as directed by the Trial Court. Mahazar and copy of the RTC submitted by the BBMP and Surveyor were produced along with the said report. Despite the said report, the defendant No. 1 filed a memo seeking for re-inspection of the property in question. The petitioner objected for re-issuance of Commissioner Warrant. In spite of the objections, the Trial Court by its order dated 29-11-2014 reissued Commissioner Warrant and directed the Assistant Revenue Officer and Assistant Executive Engineers, BTM Layout sub-Division, BBMP to provide the records pertaining to the site Nos. 18 and 19 formed in Sy. No. 6 of Tavarekere Village, 10th Cross Road, Ward No. 66, measuring East to West 30 feet and North to South 60 feet as shown in the Commissioner Warrant and directed both the parties to co-operate for the inspection. Being aggrieved by the order dated 29-11-2014, the petitioners have filed this writ petition.
6. Sri. Udaya Holla, learned Senior Counsel appearing on behalf of Sri. Vivek Holla for petitioners contended that the order passed by the Trial Court re-issuing the Commissioner Warrant is contrary to law. Earlier, on three occasions, the Commissioner visited the spot and could not locate and identity of the property. Hence, the Court Commissioner cannot fish out the evidence and it is not the duty of the Commissioner. The Trial Court ought to have passed the orders on the basis of the oral and documentary evidence available on record. Apart from that, in W.P. No. 18950/2014, this Court issued directions to the Trial Court to take note of the Commissioner Report and conclude the matter. Inspite of the said direction, once again, the Commissioner Warrant has been issued. The Trial Court cannot issue Commissioner Warrant to locate site Nos. 18 and 19. In support of his contention, he relied upon the judgment reported
7. Sri. V. Srinivasa Raghavan, advocate appearing for the 4th respondent argued in support of the petitioner and contended that the Court Commissioner cannot be appointed to collect the evidence to support either parties. The parties have to prove their case on the basis of the oral and documentary evidence.
8. Sri. Adarsh Gangal, learned counsel appearing for the 3rd respondent also argued in support of the petitioner and contended that in the absence of necessary material to establish the case, the Commissioner cannot go and inspect the spot and identify the land in dispute. The Commissioner cannot be appointed to collect the evidence and sought for setting aside the order passed by the Trial Court.
9. Sri. K.K. Vasanth, learned counsel appearing for the first respondent argued in support of the order passed by the Trial Court and contended that though the Commissioner is appointed and warrant was issued thrice, the Court Commissioner could not execute the Warrant in view of non-cooperation on the part of the officials of BBMP and revenue department. Since the court itself suo-motu has appointed the Court Commissioner to identify the property, the Commissioner has to conduct the spot inspection and submit a report. Hence sought for dismissal of the writ petition.
10. I have carefully considered the arguments addressed by the learned counsel for the parties, perused the order impugned and other relevant records.
11. The first respondent herein filed a suit seeking for declaration and also delivery of possession of ''A'' and ''B'' schedule properties after demolishing the illegal construction put up by the defendants contending that he purchased site Nos. 18 and 19 formed by Manjunatha House Building Co-operative Society. The defendants denied the said contention and asserted that the deceased first defendant purchased the property from Chotu Sab as per registered sale deed dated 23-12-1993 and the said Chotu Sab purchased the property from one Muniraju who is the son of the original owner. On the basis of the issues framed by the Trial Court, the parties lead evidence and arguments have been addressed by the contesting parties. When the case was posted for judgment, the Trial Court felt that appointment of the Court Commissioner to ascertain the identity of property is necessary, accordingly by its order dated 05-11-2013 appointed an Advocate as a Court Commissioner to make local inspection and to report about the topographical situation with complete description of the suit schedule property with the assistance of jurisdictional Assistant Executive Engineers, BBMP and issued Commissioner Warrant. Accordingly, the Court Commissioner visited the spot on 8-12-2013 and submitted a report. In the report, the Commissioner has stated that in view of non-availability of records, he was not able to identify the said properties. In view of that, the Trial Court by its order dated 14-03-2014 after considering the objections of the parties reissued the Commissioner Warrant to inspect the disputed property with the assistance of ADLR of BBMP. The re-issuance of Commissioner Warrant was questioned in W.P. No. 18950/2014. This Court disposed of the matter with a direction the Commissioner to submit a report on 8-9-2014 and directed the Trial Court to take note of the report to be filed on 08-09-2014 and proceed further to conclude the matter. Pursuant to the order of the Trial Court, the Commissioner submitted a report on 08-09-2014 stating that the office of ADLR of BBMP is not in existence, hence he could not execute the Commissioner Warrant. In view of that, the Trial Court once again issued the Commissioner Warrant on 16-09-2014. Since the Court Commissioner was not able to execute the Warrant on the date fixed, the Trial Court reissued the Commissioner Warrant on 19-10-2014 and directed to submit the report on 21-10-2014. Pursuant to the said order, the Commissioner once again visited the spot on 19-10-2014 and drew up a mahazar and submitted his report on 30-10-2014 reporting that there are no revenue records with the BBMP to identify the suit schedule property. Hence, the schedule properties could not be identified as directed by the Trial Court. Mahazar and copy of RTC Extracts were furnished to the court. The advocate appearing for the plaintiff therein filed a memo for re-issuance of the Commissioner Warrant. In spite of the objections filed by the defendants therein, the Trial Court by its order dated 29-11-2014 reissued the Commissioner Warrant directing the Assistant Revenue Officer and Assistant Executive Engineer, BTM Layout sub-Division, BBMP to provide records pertaining to the site Nos. 18 and 19 formed in Sy. No. 6 of Tavarekere village and directed the officers to co-operate for execution of the Commissioner Warrant and submit the report by 02-01-2015. Being aggrieved by the same, these writ petitions have been filed.
12. The main contention of the petitioners is that inspite of the report submitted by the Court Commissioner that he could not identify the suit schedule properties, once again the Trial Court reissued Commissioner Warrant to locate the properties, which is not correct. The Court Commissioner cannot be appointed to fish out the evidence. The plaintiff is required to prove his case by adducing independent evidence. The Court has no jurisdiction to appoint the Court Commissioner for the purpose of collecting evidence. The Court Commissioner for local investigation cannot be appointed to assist the party to collect evidence.
13. Order XXVI Rule 9 of CPC reads as under:
"Commissioner to make local investigation: In any suit in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the court may issue a Commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court".
The reading of the above provision makes it clear that object of the local investigation is for the purpose of elucidating any matter in dispute, and it is not to assist a party to collect evidence - where it can get the evidence itself. While elucidating any matter in dispute the Court Commissioner cannot collect evidence in the guise of local investigation to support either of the party.
14. In the instant case, none of the parties sought for appointment of the Court Commissioner. Though the Commissioner visited the spot for more than four times, he could not locate and identify the suit schedule properties. Hence the question of appointing the Commissioner once again does not arise. Further, after conclusion of the arguments, the court cannot appoint a Commissioner to collect some more materials, it amounts to fishing out the evidence, which is not permissible under law. The Trial Court ought to have passed the order on the basis of the material available on record. The order passed by the Trial Court appointing the Court Commissioner and reissuing the Commissioner Warrant is contrary to law. The judgments relied upon by the learned Senior counsel supports the case of the petitioners.
15. The Hon''ble Supreme Court in the judgment referred to above has clearly had laid down a law that the power of appointment of the Court Commissioner for local investigation cannot be exercised by the court to assist the party to collect evidence, where it cannot get evidence itself. When the Commissioner in his earlier report has reported that he could not identify the suit schedule properties and the records pertaining to the said properties are not available in the office of BBMP, the question of issuing Commissioner Warrant repeatedly does not arise. It amounts to collection of evidence. In the facts and circumstances of the case, the Trial Court is required to dispose of the matter on the basis of the oral and documentary evidence already available on record. Hence, the order dated 30-10-2015 reissuing Commissioner Warrant to the same Court Commissioner to file further report cannot be sustainable.
16. Accordingly, I pass the following:
ORDER
The writ petition is allowed. The order dated 29-11-2014 reissuing the Commissioner Warrant is quashed. The Trial Court is directed to dispose of the matter on the basis of the oral and documentary evidence available on record and pass orders in accordance with law. Further, the subsequent order dated 30-01-2015 passed by the Trial Court during the pendency of this writ petition for re-issuance of Commissioner Warrant is also quashed.
